Willey v Synan [1937] HCA 85; (1937) 57 CLR 200 (2 June 1937)

HIGH COURT OF AUSTRALIA

H C of A

30 October 1936

Starke J.

Fraser, for the plaintiff.

Herring K.C., for the defendant.

Starke J

. delivered the following judgment:—

On the evidence as it stands there must be judgment of nonsuit. The action has been pending since the year 1933. But the plaintiff himself has given no evidence of the finding of the coins. The court is asked to infer it from the fact that the captain of the Piako said in a report to Weir, an employee of McIlwraith McEacharn Ltd., that the boatswain found the coins in the forepeak of the vessel, and from the fact that the plaintiff was the boatswain. There is no proof—no evidence on oath—of the finding of the coins by the plaintiff; there is merely a report that money was found, and it was said to have been found by Willey. The documentary evidence tendered contains statements or reports made to or by officers in the Customs Department, who are not speaking from their own knowledge of facts. Neither the finding of the coins by the plaintiff nor his possession of those coins is proved to my satisfaction. As to Mr. Fraser's suggestion that the claims to the coins made by McIlwraith McEacharn Ltd. and by the New Zealand Government were abandoned, all I have to say, if it were a fact, is that they were not abandoned in favour of the plaintiff. I direct judgment of nonsuit to be entered. Plaintiff to pay the costs of the action. Set-off costs against any costs that may have been awarded to the plaintiff in this action. Refuse stay of proceedings.

From this decision the plaintiff appealed to the Full Court.

Appeal dismissed with costs.

Solicitors for the appellant, Abram Landa & Co.

Solicitor for the respondent, W. H. Sharwood, Crown Solicitor for the Commonwealth.

H C of A

2 June 1937

Latham C.J., Rich, Dixon, Evatt and McTiernan JJ.

Fraser, for the plaintiff.

Herring K.C., for the defendant.

Starke J

. delivered the following judgment:—

On the evidence as it stands there must be judgment of nonsuit. The action has been pending since the year 1933. But the plaintiff himself has given no evidence of the finding of the coins. The court is asked to infer it from the fact that the captain of the Piako said in a report to Weir, an employee of McIlwraith McEacharn Ltd., that the boatswain found the coins in the forepeak of the vessel, and from the fact that the plaintiff was the boatswain. There is no proof—no evidence on oath—of the finding of the coins by the plaintiff; there is merely a report that money was found, and it was said to have been found by Willey. The documentary evidence tendered contains statements or reports made to or by officers in the Customs Department, who are not speaking from their own knowledge of facts. Neither the finding of the coins by the plaintiff nor his possession of those coins is proved to my satisfaction. As to Mr. Fraser's suggestion that the claims to the coins made by McIlwraith McEacharn Ltd. and by the New Zealand Government were abandoned, all I have to say, if it were a fact, is that they were not abandoned in favour of the plaintiff. I direct judgment of nonsuit to be entered. Plaintiff to pay the costs of the action. Set-off costs against any costs that may have been awarded to the plaintiff in this action. Refuse stay of proceedings.

From this decision the plaintiff appealed to the Full Court.

Appeal dismissed with costs.

Solicitors for the appellant, Abram Landa & Co.

Solicitor for the respondent, W. H. Sharwood, Crown Solicitor for the Commonwealth.